Both Complainant and Respondents have filed Motions for
additional discovery. For the reasons discussed below,
Complainant's motion will be Granted and Respondents' motion will
be Denied.(1)

Standard for "Other Discovery"

Rule 22.19(f) of the Consolidated Rules of Practice (40
C.F.R. 22.19(f)) provides for "other discovery," that is
discovery other than that provided for in the prehearing
exchange, only upon determination by the Presiding Officer:

(i) That such discovery will not in any way
unreasonably delay the proceeding;

(ii) That the information to be obtained is
not otherwise obtainable; and

(iii) That such information has significant
probative value.

Complainant's Motion

Complainant's discovery motion demands production of
Respondent Mark Fastow's personal Federal income tax returns for
a period of five years immediately preceding the last year that
Respondent Mr. Fastow filed a Federal income tax return.(2) This
information is necessary, Complainant maintains, because it has
the burden of proof as to the appropriateness of the penalty, one
element of which is the Respondents' ability to pay, and
Respondents' have asserted inability to pay as a defense.
According to Complainant, analysis of Respondent Fiberglass
Specialties' tax returns shows that there are financial
relationships between it and the individual Respondent, Mark
Fastow, which require an analysis of the personal income tax
returns of Mr. Fastow.

Respondent Mark Fastow argues that Complainant's request is
unreasonable because, while his personal Federal tax returns will
show income, they will not provide a complete picture of his
financial status. In particular, the Federal tax returns do not
show expenses associated with providing food, clothing and
shelter for himself and his family. If he is required to produce
his tax returns, Mr. Fastow asserts, he will then have to spend
an inordinate amount of time and money to prove his other
expenses, burdening him unnecessarily.

Upon consideration, I find that Complainant's request
satisfies all three elements of a discovery request under
Consolidated Rule 22.19(f). Production of his personal Federal
tax returns by Mr. Fastow should not unreasonably delay this
proceeding in any way; the information is within the control of
Mr. Fastow and is not otherwise obtainable by Complainant; and
the information is significantly probative on the issue of
Respondents' asserted inability to pay the proposed civil
penalty. Accordingly, Complainant's motion will be GRANTED.(3)

Respondents' Motion

Respondents' discovery Motion challenges the accuracy of the
Dun and Bradstreet report submitted by Complainant as Prehearing
Exchange Exhibit 2 and requests information regarding the source
of the data underlying the report.(4) To date, Complainant has not
opposed the Motion. However, upon review, it is clear that
Respondents' discovery request does not meet the second criterion
of Rule 22.19(f) that "[t]hat the information to be obtained is
not otherwise obtainable." There is simply no evidence that the
Respondents could not otherwise obtain this information from Dun
and Bradstreet directly. Moreover, even if the discovery request
was granted, it is unlikely that the Complainant would be a
reliable informant as to exactly what data and/or documentation
was utilized by Dun and Bradstreet, a third party entity, to
create its report regarding the Respondent. Rather, it is far
more likely that the Respondents would be aware of the
information which was used to form the report, some of which they
may have voluntarily submitted.

Furthermore, the Respondents' discovery request really
raises a question concerning the admissibility of the Dun and
Bradstreet report, an evidentiary issue more appropriately raised
at hearing. In the event that Respondents do not stipulate to
the admissability of the Dun and Bradstreet report, prior to the
document being introduced into evidence, Complainant will be
required to lay a foundation for the report and to authenticate
the writing itself. At that point and/or subsequently in the
proceeding, Respondents will be given the opportunity to
introduce evidence of their own concerning the number of
employees, gross sales and other issues relating to the financial
condition of Respondent Fiberglass Specialties. The evidence as
a whole will then be considered in determining what weight the
report should be given in regard to deciding a material fact in
dispute.

Accordingly, Respondents' motion will be DENIED.

________________________________

Susan L. Biro
Chief Administrative Law Judge

Dated: _______________
Washington D.C.

1. Complainant describes its motion as one "Requesting
Additional Financial Information from Respondent." Because this
is the equivalent of a motion for discovery it will be treated as
such.

2. The Motion actually requests the returns for the five year
period "commencing" with the last year a return was filed. It is
clear that such a request is illogical and reflects a scriveners'
error.

3. At the hearing, Respondents will have the opportunity to
present evidence relating to their financial status if they so
desire, however, the evidence both sides will be permitted to
introduce at the hearing will be limited to that identified in
their prehearing exchanges. Therefore, if, as a result of
additional discovery, any party wishes to introduce additional
evidence not previously identified on its prehearing exchange, it
should promptly move to amend the prehearing exchange.
Respondents' are hereby advised that, to date, the only witness
for the defense identified in the Prehearing exchange is Kathy
Keener and if, Respondent Mark Fastow wishes to testify on behalf
of himself or the corporate Respondent, he must move to amend his
prehearing exchange to indicate his intention and provide a
narrative summary of his intended testimony.

4. In addition to the pending discovery motion, Respondents
had previously filed a Motion to Compel Discovery, which was
granted by Order dated April 8, 1998.